Seventh Circuit Court of Appeals panel rules for high school students in free speech case

March 1, 2011 – The U.S. Court of Appeals for the Seventh Circuit has ruled that high school students have a constitutional right to wear a T-shirt bearing the words "Be Happy, Not Gay" if the school cannot not prove wearing such a shirt would cause a substantial disruption.

Seventh Circuit Court of Appeals panel rules for high school students
in free speech case

Schools can regulate student speech that could reasonably cause
substantial disruption of school activities, or the speech could incite
a violent response. Recently, a panel for the U.S. Court of Appeals for
the Seventh Circuit ruled that a school could not prevent a student from
wearing a T-shirt that said “Be Happy, Not Gay.”

March 1, 2011
– The U.S. Court of Appeals for the Seventh Circuit has ruled that
high school students have a constitutional right to wear a T-shirt
bearing the words “Be Happy, Not Gay” if the school cannot
not prove wearing such a shirt would cause a substantial disruption.

Two students at a Naperville, Illinois public high school requested
injunctive relief after a school official inked out a portion of
one’s T-shirt bearing the words “Be Happy, Not
Gay.”

One student, Heidi Zamecnik, wore the T-shirt in response to a
“Day of Silence” observed by other students advocating
tolerance for homosexuality. Another student, Alexander Nuxoll, wanted
to wear the T-shirt but feared being punished by school officials.

On the Day of Silence – promoted annually by the Gay, Lesbian,
and Straight Education Network and sponsored by a school club called the
Gay/Straight Alliance – students remained silent in class unless
called upon or wore T-shirts bearing slogans such as “Be Who You
Are.”

Those particular slogans were not banned, but the school banned
Zamecnik’s T-shirt based on a school rule that forbade derogatory
comments relating to race, ethnicity, religion, gender, or sexual
orientation.

Nuxoll I

The plaintiff-students argued, on free speech grounds, that the school
could not ban negative comments about members of a group provided they
were not “fighting words” likely to promote a violent
reaction or breach of the peace.

The district court denied the requested preliminary injunction, but the
Seventh Circuit Court of Appeals in Nuxoll v. Indian Prairie School
District, 523 F.3d 668 (7th Cir. 2008) [Nuxoll I] (opinion
by Judge Richard Posner), reversed and held the school could not prevent
Nuxoll from wearing the “Be Happy, Not Gay” slogan on his
T-shirt during school (Zamecnik graduated).

That ruling was based on the school district’s inability to prove
the T-shirt slogan would cause a substantial disruption at school. As
Judge Posner wrote in his opinion, “[s]peculation that it might
is, under the ruling precedents, and on the scanty record compiled in
the litigation, too thin a reed on which to hang a prohibition of the
exercise of a student’s free speech.”

However, Posner noted the outcome could change based on a more
substantial record after further proceedings. Judge Ilana Rovner wrote a
concurring opinion in Nuxoll I, concluding the slogan, though
disparaging, was “not the kind of speech that would materially and
substantially interfere with school activities."

On remand, the district court ordered a permanent injunction allowing
any future student to bear the “Be Happy, Not Gay” slogan on
any piece of clothing or personal item. The district court also granted
summary judgment to the plaintiffs, Nuxoll and Zamecnik, awarding each
of $25 in damages for infringement of their constitutional rights.

Nuxoll II

The school district appealed, arguing that summary judgment was
inappropriate because the school reasonably believed the
plaintiff’s T-shirt slogan would cause a substantial
disruption.

In Nuxoll
v. Indian Prairie School District et al., Nos. 10-2484 &
10-3635 (March 1, 2011), the same Seventh Circuit Court of
Appeals panel that heard Nuxoll I ruled that
summary judgment in favor of Nuxoll and Zamecnik was appropriate because
the school did not meet its burden of proving the slogan would cause
substantial disruption in school.

The appeals panel – in an opinion written by Judge Posner –
agreed that school authorities are entitled to use discretion in
determining “when student speech crosses the line between hurt
feelings and substantial disruption,” but noted that protection of
“hurt feelings” is not a defense to infringement of free
speech rights.

In trying to meet its burden to prove that wearing a T-shirt with the
slogan “Be Happy, Not Gay” would substantially disrupt
school activities, the school district relied on incidents of harassment
of homosexual students, incidents of harassment of Zamecnik, and expert
testimony from a PH.D in sociology and professor of family and consumer
sciences.

The appeals paneled dismissed prior incidents as negligible and
unreliable, and dismissed evidence that other students harassed Zamecnik
as barred by the “heckler’s veto.”

“Statements that while not fighting words are met by violence or
threats or other unprivileged retaliatory conduct by persons offended by
them cannot lawfully be suppressed because of that conduct,” Judge
Posner explained.

Posner also noted that anger towards Zamecnik – as evidenced by a
Facebook group called “Be Happy, Not Heidi” – began as
a result of the lawsuit, not when she wore the T-shirt.

The panel also concluded that the expert was qualified to give an
opinion relating to the attitudes and behavior of teenagers,
but the opinions were not based on any reliable principles,
methods, or data.

Thus, the court concluded that it was not error for the district court
to grant summary judgment in favor of the students for infringement of
their free speech rights.